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Court of Criminal Appeal 29 June 2001

Regina (Commonwealth) v Hung

[2001] NSWCCA 233

Fraud & dishonesty
CRIMINAL LAW SENTENCE AND PROCEDURE APPEAL WHETHER MANIFESTLY EXCESSIVE PARITY ADMISSION OF FRESH EVIDENCE.

Citation: Regina (Commonwealth) v Hung [2001] NSWCCA 233
Court: New South Wales Court of Criminal Appeal
Date: 29 June 2001
Judge(s): Simpson J; Badgery-Parker AJ; Newman AJ

Background

The appellant pleaded guilty in the District Court to four charges under the Financial Transaction Reports Act 1988 (Cth). Each charge alleged that he had made a materially false statement capable of causing a cash dealer to lodge a false report of an international fund transfer instruction. In practical terms, he had requested four overseas telegraphic transfers of $100,000 each from Advance Bank in March 1998, falsely identifying a film production company as the sender of the funds. The actual recipient was his brother.

The District Court sentenced the appellant to concurrent terms of imprisonment on each count. The sentencing proceedings produced a procedurally irregular sentence, and subsequent correspondence between the Attorney-General's Department and the Director of Public Prosecutions brought the irregularity to light. The appellant then sought leave to appeal against the severity of the sentences, and also raised issues of parity with co-offenders and alleged incompetent legal representation at the sentencing hearing.

  • Whether the sentences imposed were manifestly excessive.
  • Whether a sentencing error arising from the structure of the sentence under s 19AC of the Crimes Act 1914 (Cth) required intervention by the Court of Criminal Appeal.
  • Whether parity principles required the sentences to be reduced by reference to sentences received by co-offenders.
  • Whether fresh evidence of alleged incompetent legal representation at the original sentencing should be admitted, and whether that incompetence (if established) constituted a miscarriage of justice.

Decision

The District Court's sentencing order was procedurally irregular. Section 19AC(1) of the Crimes Act 1914 (Cth) required the sentencing judge to make a recognizance release order rather than fix a non-parole period, because the total sentence did not exceed three years. The judge's final pronouncement imposed 15 months as the total term rather than as a minimum term, and the accompanying direction for release on recognizance for 12 months after service was not authorised by any statutory provision. The Court of Criminal Appeal acknowledged this error but found that a power of correction existed under s 19AH of the same Act and that the error did not, in the circumstances, warrant allowing the appeal.

On the question of parity, the Court considered the sentences imposed on co-offenders. The appellant argued his sentence was disproportionately harsh by comparison. The Court examined the relative positions of the co-offenders, including the nature of their offending and their individual circumstances, and was not persuaded that any justified sense of grievance arose from the disparity.

Regarding the fresh evidence ground, the appellant sought to rely on affidavit material suggesting his former legal representatives had performed inadequately at sentencing. The Court declined to admit this material. The appellant had refused, throughout the lead-up to the hearing, to waive legal professional privilege over communications with his former lawyers, which prevented the Crown from obtaining instructions or evidence from those lawyers. Admitting the material in those circumstances would have been unfair to the prosecution. Even if admitted, the Court found the material fell short of establishing incompetent representation amounting to a miscarriage of justice.

The Court unanimously dismissed the appeal, granting leave but finding no ground warranted interference with the sentences.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Section 19AC(1) of the Crimes Act 1914 (Cth) obliges a sentencing court to make a recognizance release order, rather than fix a non-parole period, where a federal sentence or aggregate federal sentences do not exceed three years and the offender is not already serving a federal sentence.
  • A court may decline to make a recognizance release order under s 19AC(4), but only if it is satisfied such an order is inappropriate and it records its reasons; failure to follow this process constitutes a procedural error.
  • Procedural irregularity in the structure of a federal sentence does not automatically justify a successful appeal against severity where the overall sentencing intention and outcome can be properly assessed.
  • Where an appellant seeks to introduce fresh evidence of alleged incompetent legal representation but refuses to waive legal professional privilege, the court may decline to admit that evidence on grounds of unfairness to the respondent.
  • General deterrence carries particular weight in sentencing for offences under the Financial Transaction Reports Act 1988 (Cth), given that one of the Act's stated objects is the enforcement of Commonwealth taxation and other laws.

Legislation and Cases Referenced

Legislation
- Financial Transaction Reports Act 1988 (Cth)
- Crimes Act 1914 (Cth), particularly ss 19AC, 19AH
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- R v Lowe (1984) 154 CLR 606
- R v Postiglione (1997) 189 CLR 295
- R v Goodwin (1990) 51 A Crim R 328
- R v Munday (1981) 2 NSWLR 177
- R v Gallagher, NSWCCA, 27 August 1991 (unreported)
- R v Cartwright (1989) 17 NSWLR 243
- R v Scullion, NSWCCA, 15 July 1992 (unreported)
- R v Willard [2001] NSWCCA 6
- R v Abbott (1985) 17 A Crim R 355